France now provides a royalty on blank tape that goes to authors, composers, performers, and producers. France also has a tax on photocopying machines, and part of this money goes to French copyright owners. As to copying in the educational, institutional, or office contexts, it has been noted that "whether or not this activity is illegal will depend on the law of each country and the exceptions permitted to the reproduction right under national laws. "84/

The most significant "Berne-fair use" question for the United States may be how our law would comport with Article 9(2), which provides:

It shall be a matter for legislation in the countries
of the Union to permit the reproduction of [literary
and artistic] works in certain special cases, provided
that such reproduction does not conflict with a normal
exploitation of the work and does not unreasonably
prejudice the legitimate interests of the author.
LEmphasis added.]

This provision dates only from 1967.

But, not coincidentally, so

The

does the Berne provision stating that there is a right of reproduction. intent of the Article, it is said "was to find a formula wide enough to cover all reasonable exceptions but not so wide as to make the right illusory."85/ To be sure, the Article 9(2) "test" is cumulative: copying, to be permitted, must not conflict with a normal exploitation of a work and must not unreasonably prejudice an author's legitimate interests. But since it is up to

84.

Id. at 15. Stephen Stewart, in commenting on the text and meaning of
Article 9(2), notes:

Even under the Berne Convention each country has to decide
what the legitimate interests of the author are, whether
the prejudice [from unauthorized copying] to the se
interests, which is inevitable, is reasonable or
unreasonable, and what amounts to a normal exploitation....

S. Stewart, International Copyright and Neighboring Rights $4.29 (1984). 85. Wipo Guide at 54.

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members to determine the meaning of those terms, the calculus involved would probably resemble the case-by-case determination performed by our courts under either case law or section 107.

The WIPO Guide suggests these results: single photocopying of journal articles is generally permitted, 86/ compulsory licensing with equitable remuneration is appropriate for large-scale photocopying which results in a serious loss of profit to a copyright owner,87/ personal and scientific uses may be favored by national laws,88/ and "it rests with each country to make appropriate measures best adapted to its educational, cultural, social, and economic development."89/

Library photocopying, the subject of a separate exemption under United States law, presents a special case, and is the subject of rather detailed provisions under United States law.90/ While the text of Berne does not mention library copying per se, it may be instructive to observe that the present practices of the national libraries of two present Berne adherents, the United Kingdom and Canada, are more generous regarding interlibrary loan copying than United States law permits.91/

91.

In the United Kingdom, the British Library Lending Division will fill requests from individual libraries for up to nine copies per year from any one journal, while the National Library of Canada will fill up to six requests. In the United States, the limit is generally five copies per journal per year. See CONTU Guidelines, reprinted in H.R. Rep. No. 1733, 94th Cong., 2d Sess. 72-74 (1976).

13. Home Recording. The VCR phenomenon is so recent that the international debate regarding author's rights in the case of home recording of copyrighted works is at the incipient stage.92/ Since the act of recording involves the reproduction right, it is primarily Article 9 of Berne that needs to be examined, and especially the range of permissible exceptions in paragraph (2) of that Article. The key questions seem to be whether home recording "conflict[s] with a normal exploitation of the work" or "unreasonably prejudice[s] the legitimate interests of the author."

The first in a new series of international meetings to explore the problem of home recording took place June 1984.93/ A private group of experts government delegations attended merely as observers -- concluded that both international copyright conventions (Berne and the Universal Copyright Convention) should be interpreted as requiring equitable remuneration for home recording.94/ These initial conclusions of private experts will be examined and evaluated by government experts at later meetings, and submitted to members of Berne and the UCC governing committees.

Some countries95/ have already enacted compensatory legislation by levying royalties on blank audio and video cassettes or on the recording

92. See Masouye, Private Copying: A New Exploitation Mode for Works, Copyright 81 (Feb. 1982); Fiscor, The Home Taping of Protected Works: An Acid Test for Copyright, Copyright 59 (Feb. 1981).

93. Report, Group of Experts on Unauthorized Private Copying of Recordings, Broadcasts and Printed Matter, Copyright 280 (July-Aug. 1984). See Davies, The Private Copying of Sound and Audiovisual Recordings Chapter 5 (1983) (hereinafter "Davies") for a summary of recommendations by intergovernmental and nongovernmental groups. See also IFPI Study, Private Copying of Sound and Audio-Visual Recordings (1983) (Survey of non-EEC Member States of the Council of Europe).

94. Id., Report at 281.

95. Austria, The Congo, Federal Republic of Germany, Finland, France, Hungary, Iceland, Norway, Sweden, and Turkey (all are Berne members; all except The Congo and Turkey are UCC members).

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equipment itself. Similar proposals are under consideration in other countries.96/

14. Commercial Rentals. The other copyright legacy of the VCR phenomenon commercial rental of sound recordings and audiovisual materials

is so new that time has permitted even less international consideration than in the case of home recording.

The first international meeting to study rentals was held in November 1984.97/ Preliminary indications are that the absence of a specific reference to a distribution right in the Berne Convention has led to variable practices regarding distribution of copyrighted works. Some countries view the distribution right as implicitly protected by the reproduction right. Limitations similar to the "first sale" doctrine of 17 U.S.C. $109 (the first authorized sale of a particular copy exhausts the right of public distribution) exist.98/ The United States currently accords copyright owners of audio recordings an exclusive commercial rental right. This provision sunsets in

1989.

96. Davies at chapters 4 and 5.

97. Report, Group of Experts on the Rental of Phonograms and Videograms, Copyright 16 (Jan. 1985). A meeting on audiovisual works and phonograms was held in June of 1986. See Copyright (July-August 1986) for a report of this meeting.

98. A West German court recently held that a sale with a repurchase at lower price of a record amounted to a rental and did not violate the copyright owner's rights. The West German record industry asserts that the decision violates the Berne Convention and seeks amendment of their copyright law to accord an exclusive rental right. 99 Billboard 68, col. 1 (May 23, 1987).

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IV. SUMMARY AND ANALYSIS OF H.R. 1623

United States adherence to the Berne Convention apparently requires

significant revision of our copyright law. Had the required modifications been simple matters, the United States would have likely adhered to the Berne Convention years ago. The heightened interest in international trade has fostered a fresh look at the Convention.

Recent studies on the Berne Convention, such as the report of the Ad Hoc Working Group, have identified the problem areas. In many of these areas, however, a consensus has not yet been reached about the precise nature of the Berne Convention obligations, and therefore about the content of implementing legislation. Moreover, it is not yet clear what political price the copyright proprietors and users will pay for United States adherence to the Berne Convention.

H.R. 1623 advances the inquiry into Berne adherence by offering specific solutions to most of the identified problem areas. As Chairman Kastenmeier noted in the Congressional Record, copyright experts disagree on the extent United States law must be changed, and some changes will undoubtedly be controversial.99/ H.R. 1623 takes very seriously the obligations of the Berne Convention, and attempts to open public debate on the controversial issues in a straight forward fashion.

An analysis of the

specific solutions advanced by H.R. 1623 follows:

99.

133 Cong. Rec. H1293 (daily ed. March 16, 1987).